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Laird, Mercure, Hansen Obtain Reversals on Product Liability Appeals Against Dress Manufacturer and Retailer


The plaintiff sued for personal injuries after she was badly burned when the dress and skirt she was wearing caught fire while she was standing near a propane heater.  The plaintiff alleged that the skirt, dress, and heater all contained manufacturing defects.  The manufacturer of the heater retained Edward Laird, Thomas Mercure, and Jonathan Hansen as appellate counsel after the plaintiff’s claims for design defect against the dress manufacturer and retailer were dismissed.  The dress manufacturer and retailer had been granted summary judgment on the basis that the dress complied with the Federal Flammable Fabrics Act and was safely designed. 

On appeal to the Appellate Division, Third Department, Laird, Mercure and Hansen successfully argued that questions of fact existed as to whether the dress was defectively designed by highlighting expert proof which demonstrated that the skirt was not reasonably safe for consumers because it ignited too quickly and burned too readily and that it did not contain a warning label.

Laird, Mercure, and Hansen also successfully argued that the heater manufacturer had standing to prosecute an appeal against the dress seller, despite not maintaining a cross-claim against it, by virtue of having raised Article 16 as an affirmative defense in its Answer.  Thus, although the heater manufacturer did not have a right of contribution against the dress seller, it did have the right to an apportionment of liability at trial as and between the dress seller and itself. 

As a result, the Appellate Division reversed the Order of summary judgment in favor of the dress manufacturer and seller, allowing Carter Conboy’s client to pursue an allocation of fault against them at trial.